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Sentencing and the Cult of Personality (Update)

In a CNN op-ed, Northern District of Iowa Judge Mark W. Bennett (the other Bennett, as he’s called around here) and former AUSA, now lawprof, Mark Osler describe how the experiment failed:

Nearly 30 years ago, Congress embarked on a remarkable and ultimately tragic transformation of criminal law. Through the establishment of mandatory sentences and sentencing guidelines, discretion in sentencing was shifted from judges to prosecutors.

After the changes, prosecutors largely controlled sentencing because things like mandatory sentences and guideline ranges were determined by decisions they made.

Judge Bennett notes how the change ignored that judges were drawn from experienced lawyers with distinguished careers, though that contention may not be as strong as he thinks. Federal judges are drawn from white shoe law firms, who tend to have no experience in criminal law, making their long experience and distinguished careers no more relevant to the task of sentencing human beings than being able to knit perfect sweaters.

The other group from whom federal judges are drawn is federal prosecutors. While some have proven to be remarkably good judges, Judge John Gleeson being the obvious example, they tend to have neither particularly long nor distinguished careers, unless you think there’s something distinguished about shooting fish in a barrel.

The primary reason for the changes was well-intended, though: Members of Congress wanted more uniformity in sentencing. That is, they wanted a term of imprisonment to derive from the crime and the history of the criminal rather than the personality of the person wielding discretion.

The evil Congress saw was that a defendant in one place would get a sentence of, say, 5 years while a comparable defendant elsewhere would get 20 years. The media at the time picked up on the disparity and made fun of Congress. It hurt the representatives’ feelings, so they had to fix it.

After nearly 30 years, we know how Congress’ experiment turned out, and the results are not good. Federal judges have been relatively lenient on low-level drug offenders when they have the discretion to go that way. Turning discretion over to prosecutors via mandatory sentences and guidelines not only resulted in a remarkable surge in incarceration, it does not seem to solve the problem of disparities.

The point is that the discretion that was once exercised by judges is now exercised by prosecutors. It was an unintended consequence of a fix that made sense on paper, much like the discussion about plea bargaining producing too great a trial tax. A solution that was easy, simple and wrong.

By Congress’ embrace of this simplistic yet misguided solution, the fix ignored the virtue of individualized sentencing by putatively experienced jurists, which left a vacuum. Nature abhors a vacuum.

It also ignored the contrasting truth that many federal prosecutors are young lawyers in their 20s and 30s who have little experience making decisions as weighty as determining who will be imprisoned and for how long.

Regardless of who is making the decisions, someone must. If it’s not judges, then it’s prosecutors. Did it not occur to anyone in Congress that by putting in place rigid rules that constrained judges from the exercise of discretion, they merely shifted the discretion elsewhere? In this case, they took it from judges and put it into the hands of kid prosecutors, because, you know, they know all there is to know about humanity, pain, retribution and rehabilitation. Ask them, they’ll tell you.

The op-ed goes on to provide some numbers to reflect how this worked out:

The numbers tell the story. Our home states are fairly typical in their wild disparities: A federal defendant in Iowa is more than 1,056% likely to receive a 851 enhancement than one in Minnesota.

Nor are these Midwestern neighbors an anomaly. In the Northern District of Florida, prosecutors apply the enhancement 87% of the time, but in the bordering Middle District of Georgia, they are used in just 2% of relevant cases.

People love numbers, as we’re in the age of empiricism and they relieve us of the burden of having to think too hard to understand the depth of the problem. Numbers, however, bring little comfort to any individual defendant, most of whom believe that they will somehow be the exception to the rule, or perhaps that their deity has a special concern for people who sell drugs for a living.

Criminal defense lawyers, who seem to always be left out of these discussions because no one cares what we think before exercising discretion to destroy a person’s life, expend enormous effort trying to persuade young prosecutors to see our clients as human beings, flawed perhaps but not irredeemable. We try to explain how prison sentences longer than these prosecutors have been on earth are a very, very long time. We seek to convince them that there are motivations, reasons, that can’t be simply explained by calling defendants evil.

Sometimes it works.

Why aren’t I talking about trials, about staring down some kid prosecutor and telling him, do your worst and we’ll see what the jury has to say? When we can, we do. When a client is ready to fight, we’re more than ready to fight for him. But then we’re going for broke, whether it’s one count or a hundred. That Congress has handed prosecutors the tools to coerce defendants, again simple solutions to eradicate crime that sound wonderful to the naïve but don’t work, isn’t the prosecution’s fault. They use the weapons they are given.

But it’s unjust, you say, to raise the ante to force defendants to plead guilty or cooperate. You bet it is, and that’s just how Congress likes it. And Congress likes it that way because people like it that way, and it gets people re-elected.

When the Supreme Court held that the sentencing guidelines are advisory, it removed a huge stumbling block from the return to a somewhat more rational system. Mandatory minimums, enhancements like §851, still shift the power to kid prosecutors and tie the hands of judges.

Then again, more than a generation of sentencing under the guidelines has so badly skewed the notion of what constitutes a reasonable sentence that newer judges, the ones who never practiced in a world that didn’t include the guidelines, have no memory of when we didn’t demand death plus cancer for every crime.

Tentative steps at reform will not be enough. It is time for a radical rethinking of the project as a whole and a recognition that this grand experiment in shifting discretion to prosecutors has failed.

Without question, it’s failed. What is a far harder question is whether shifting the discretion of sentencing back to judges will prove to be the solution. Granted, it’s far easier to point out what’s wrong with a system than to come up with solutions. Maybe there are no solutions, and the best we can do is strive to avoid the worst failures. As long as a legal system depends on the discretion of human beings, it will be flawed. Maybe the best we can do is be the least flawed possible. Maybe someone, some day, will come up with a flawless solution, but no one has as yet.

Consistent with my strongly held view that judges are no better than the average person when it comes to sentencing offenders, why don’t we junk judicial-sentencing in the federal courts, and let juries impose the sentence?

From the populist viewpoint, as taken by those who keep pounding the table for jury nullification as the salve for the system, this would likely be a fabulous idea. I’m not so sanguine, fearing the jury sentencing could be just as likely to impose death plus cancer for jaywalking as probation for triple murder. Anyone who has spoken with jurors after a trial ought to be scared to death by this alluring option.

I wish we had a better system for training and raising a variety of Judicial talent, and giving them the discretion. Like you pointed out, before it was the Judge’s with most of the power, while currently much is in the charging power of the prosecutor. We also suffer that most judges are either former prosecutors or white shoe, with the occasional law professor. Good talent, but we need a mix of ideas and backgrounds. I think Thurgood Marshall was the last real defense attorney on the Supreme Court.

Maybe we still what the French do, where to be a judge, you must spend time as both prosecutor and defense attorney? I’m also against elected judges, but I know that troubles people. I’m also in favor of splitting judicial functions more clearly. A former prosecutor or defense attorney turned judge may not be the best person to decide patent cases, while a former white shoe M&A may not be the best for death penalty cases.

I think the biggest problem though, is something else you pointed out. Politics leak into the justice system, and muck it up. And neat solutions tend to either be not so simple, or someone’s political ploy. Like you pointed out with the issues in the drunk driver murder charges, law makers will scramble on issues to make political hay and pass bad law. And I also recognize having the judicial process be more politically independent has it’s own issues as a simple fix…

As for jury sentencing, they do it in Texas (and I think Oklahoma and possibly elsewhere), and it actually seems to work pretty well. At least when I was there and where I was in the state (decades ago and in Lubbock, which is not far from Levelland, Brownfield, and Plainview to give some sense of the geography and which called itself “The Buckle on the Bible Belt”), it was the unusual case where we’d prefer to waive a jury for sentencing.

Of course, Texas judges are elected and the defense has at least some input into the composition of the jury.

If it were primarily a cost control problem there might be a better chance of correcting the “excessive” penalites. Until people are informed about the costs not much will happen. It is not easy to collect the cost data I tried to do that for my county and came up with a rough estimate but I have no way to determine if my estimate is reliable. Of the more reliable facts there were far more county residents in federal prisons than anyone expected. There were about 1 per 1,800 residents for a per capita incarceration cost of about $16 per county resident per year for just federal prisoners. For comparison county jail and state prison per capita incarceration costs amount to about $60 per county resident per year.

I suppose Incarceration is a minor fraction of the total cost in particular if there is an appeal.

Scott H. Greenfield

What Do You Think?

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SHG